I'd like to propose a simple test for originalism--an argument is originalist only if the application of the text under consideration was contemplated by somebody at the time the provision was ratified.

I disagree with that test, on at least two grounds. First, an issue that wasn't contemplated one way or the other by anyone at the time of ratification may arise later because of changes in technology or circumstances. That shouldn't preclude applying the original meaning of the text to the new circumstance, if the language permits it. For example, whether the first sentence of the Fourteenth Amendment grants birthright citizenship to U.S.-born children of illegal aliens wasn't discussed (so far as I know) at the time of ratification because restrictive immigration laws had yet to be passed. Nonetheless, I think the original meaning of the text ("All persons born ... in the United States and subject to the jurisdiction thereof") would have been understood to include those children, had the issue arisen (see here). And I think that's an originalist argument.

Second, even with respect to specific application issues that may have existed at the time of ratification, it's quite possible that no one commented on them (or that comments, if made, have not been preserved). An originalist could still use the original meaning of the language to find the best resolution of those issues, even without specific ratification-era commentary in support.

The bigger problem is how to deal with situations where comments at the time of ratification all (or mostly) seem to state or assume a particular application, but someone today contends that the original meaning of the text nonetheless means the opposite. I think that's still an originalist argument (though perhaps not a persuasive one), so long as it's actually based on a plausible original meaning of the text rather than an evolving meaning.

11/29/2011

The Constitution's Article I, Section 8 provides that “Congress shall have Power … To define and punish … Offenses against the Law of Nations.” Is there a limit on Congress’ ability to say what constitutes an offense against the Law of Nations, or can Congress prohibit anything it feels violates (or should violate) the law of nations? In an amicus brief filed last week in the D.C. Circuit, a group of law professors (including me) argues on originalist grounds that there is a constittutional limit. As the brief’s summary puts it:

The framers of the Constitution shared a common understanding of the law of nations as a body of law that reflected the combined practices of many nations, and, therefore, could not be created by any single State. This background assumption was explicitly discussed at the Constitutional Convention and incorporated into the precise language chosen for the Offenses Clause. The framers adopted the Clause with the express intent to permit Congress to impose sanctions for violations of internationally recognized norms of the law of nations, not to create new norms. The Supreme Court has consistently applied the Clause in this limited manner, looking to international law to determine whether the Clause authorized a congressional enactment. As a result, the Offenses Clause served as a constitutional basis for Congress’ decision to criminalize certain acts in the Military Commissions Act only if those acts violated existing international law norms.

The case is Hamdan v. United States, in which Hamdan is being prosecuted by military commission for material support of terrorism. There is some question whether material support of terrorism is actually a violation of international law. The brief takes no position on that issue, but its central conclusion is that “Congress’ power under the Offenses Clause is limited to imposing sanctions on existing violations of international law, and does not include the power to create new international law norms. As a result, Congress had no power under the Offenses Clause to create a military commission to prosecute Salim Ahmed Hamdan for offenses that were not violations of existing norms of international law.”

Although in this particular case the originalist argument potentially favors a terrorism defendant, the issue is much broader and cuts across immediate political interests. For example, suppose Congress concludes that the death penalty, as currently imposed in the United States, violates international human rights law. Could it use the offenses clause to prohibit the death penalty in the states? Would the answer depend on whether the death penalty actually violates existing international law, or could Congress define it as such an offense regardless of its actual international status?

11/28/2011

David Savage discusses Justice Scalia's views on the original meaning of the Sixth Amendment, which have led the Court to be more protective of the rights of criminal defendants. This is another example of how originalism does not have a uniform political valence. It can support conservative, liberal, or libertarian results. The same is true of nonoriginalism.

I have recently been reviewing these Sixth Amendment cases, and they are very interesting. I hope to have more to say about them in the future.

11/26/2011

Mike posts on this immediately below. Here is an issue where conservative and libertarian living constitutionalists might weigh in. Given the corrupt bargains made between the politicians and the public employee labor unions, one might conclude that these bargains should not be respected. (One extreme example is the large retroactive pension increases that Gray Davis granted -- what could possibly justify such a measure?) One might conclude that the government can only bind future citizens if it has a permissible purpose and that these corrupt bargains were not permissible. This, of course, is living constitutionalism and depends on one's view of current values and desirable principles and results.

What about originalism? One possible argument here is to deny that public contracts are covered by the Contracts Clause. While I don't want to take a position on the original meaning here, there are some strong arguments for concluding public contracts are not covered. Most importantly, at the time of the Constitution, most public contracts conferred monopolies on corporations, and there was a strong distaste for such monopolies.

I wrote my Student Note on the Contracts Clause many years ago. But if I ever return to the subject, I will certainly investigate this public contracts question.

This issue may resurrect interest in the contracts clause of Article I, Section 10: “No State shall … pass any … Law impairing the Obligation of Contracts…” And it may pose a conflict for conservative originalists. As Skelton reports, public sector unions are invoking the clause to challenge pension reforms such as the package proposed by California Governor Jerry Brown:

"Employees are entitled to benefits in place during their employment," asserts the California Public Employees' Retirement System in a recent report.

"Promised benefits may be increased during employment, but not decreased, absent the employees' consent.... The courts have established that this rule prevents not only a reduction in the benefits that have already been earned, but also a reduction in the benefits that a member is eligible to earn during future service."

Skelton also reports this from former Chapman law dean John Eastman, a strong originalist who’s working for pension reform:

His reading of two centuries of case law on the contract clause, Eastman says, is that public pension plans can be modified if there's "a real serious fiscal problem, a dire financial need — and the system is underfunded. Given the circumstances in California, I think we would meet the legal requirement."

He adds: "Guys in the Legislature made [pension] promises they cannot fund. Making sure that future generations of taxpayers are not held to that obligation is not a violation of the contracts clause."

That might be right under the current law of the contract clause, because the Supreme Court notoriously rendered the clause something close to a nullity in the New Deal era on manifestly nonoriginalist grounds. But is there an originalist argument that would allow altering pension obligations? That seems a more difficult question, and one that may be worth some close attention.

This essay is a critique of the conservative rhetoric used in their attack on birthright citizenship — as granted by Clause 1 of the Fourteenth Amendment, which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” The rhetoric of that attack violates the traditional canons of conservative argumentation and interpretation, such as original intent and plain meaning. As such, their arguments call into question the seriousness of their allegiance to these canons.

This article explores what it would mean to interpret a constitution in terms of the proposition that the best interpretation is that which possesses the most explanatory power. Building on a related article in which the meaning of 'explanatory power' is clarified and its potential application to questions of legal interpretation is explored and defended, this article seeks to show what difference a rigorous attempt to maximise the explanatory power of our interpretations would make to a very specific problem of constitutional interpretation. The particular issue on which the article focuses is whether a national constitution, in providing for a system of government in which members of the legislature are 'chosen by the people', necessarily implies that there are definite limits on the extent to which convicted prisoners can be automatically disqualified from voting in elections.

Questions of implied rights, such as the right to vote, especially arise under constitutions which either do not have a constitutionally entrenched bill of rights, or whose catalogue of rights is thought to have certain lacunae which the implied rights are somehow meant to fill. Such questions have arisen, for example, under the United States Constitution in relation to so-called penumbral rights and specifically in relation to the right to vote itself; and they have also arisen under the Canadian Constitution, especially in the period prior to the enactment of the Charter of Rights and Freedoms. This article focuses on the reasoning of the High Court of Australia in a particular case, Roach v Electoral Commissioner, in which it was held that the Australian Parliament does not have an open-ended power to disqualify prisoners from voting, especially where they are serving sentences of a very short duration in circumstances where the length of the sentence is not necessarily related to the seriousness of the offence or the personal character of the prisoner.

The article argues that the concurring and dissenting judgments in the case illustrate the real practical difference that a deliberate and rigorous pursuit of the best explanation of a constitution will make in implied rights cases such as this. It is shown that when judges, apparently wishing to come to a conclusion that is thought justifiable in terms of their perception of contemporary values and expectations, undertake an analysis of the text, structure and history of a constitution at a level of such generality that it enables them to incorporate prudential judgments and ethical values that accord with those contemporary perceptions, it leads to conclusions that have less explanatory power compared to approaches that involve closer and more rigorous analyses of text, structure and history, and which are directed to the disclosure of a more precisely defined set of prudential and ethical judgments which demonstrably motivated those involved in the making of the constitution.

It is argued that when this latter approach is adopted an interpretation possessing a higher level of explanatory power is likely to result, because the enquiries into text, structure, history, principle and pragmatics tend to reinforce each other in a mutually illuminating way. Insights acquired through careful investigation of the historical context in which a constitution came into being frequently shed light on otherwise unnoticed textual details and overlooked structural relationships; moreover, through this process underlying ethical principles and motivating prudential judgments are also illuminated, and a more thorough, detailed and ethically-informed understanding of the constitution emerges as a result. Furthermore, recognising this relationship between text, structure and history, together with the specific prudential and ethical judgments to which a constitution actually gives effect, offers a basis for distinguishing between authentic constitutional implications and those which rest upon ethical and prudential judgments that have an inadequate grounding in the text, structure and history of the constitution. A more rigorous approach is morally preferable because it offers a way to maintain and preserve the judicial duty to do justice in accordance with the law, and it is theoretically preferable because it offers a way to integrate arguments from text, structure, history, ethics and prudence into a coherent whole, and in this way to maximise the explanatory power of our theories of the constitution. Text, structure, history, doctrine, ethics and prudence all have legitimate roles to play in constitutional interpretation, but if their use is to be coherent, it is argued, we ought to pursue those interpretations that offer the best sense of them all.

11/23/2011

In a post here earlier this week, responding to an article by David Gans, Mike Rappaport argues that the “most likely original meaning” of the equal protection clause is not the modern idea that it requires laws to afford all persons equal treatment. Rather, relying on important scholarship by John Harrison and Chris Green, he finds that

the Equal Protection Clause protects against the failure of the state to protect people from violations of the law. The focus of the Clause was on the historical evil of state officials, such as sheriffs, who ignored private violence by groups, such as the KKK, against blacks, unionists, and others who the former confederates opposed.

My question is, assuming that’s true (and I would hesitate to argue with authorities of the stature of Professors Harrison and Green), where does it leave originalism as a theory of modern adjudication? The Supreme Court embraced the “equal treatment” reading as early as Yick Wo v. Hopkins in 1886 and has applied it in countless cases since then; even dedicated originalist judges such as Justice Thomas make equal treatment a centerpiece of their jurisprudence, as in the Court's affirmative action cases. Would originalism require us now to abandon it?

If it does, that would seem to open originalism to charges that it is too destabilizing to be a practical modern approach, especially to the extent originalism purports to rest on rule-of-law values. Henry Monaghan makes this sort of argument well here (though he directs it against originalist interpretation of the supremacy clause, where I think it has less force).

Instead, originalism might combine with some version of precedent. One possible version is to accept the specific outcomes of nonoriginalist Supreme Court cases, but not extend them to new controversies. I’ve argued that such an approach would take care of Professor Monaghan’s problems with the supremacy clause without fundamental distortion in supremacy clause jurisprudence. But the equal protection clause seems a more intractable problem: if Harrison and Green are right, equal protection nonoriginalism is pervasive and incapable of confinement to a few specific areas. If the entire foundation of our understanding of the clause is nonoriginalist, the “no extensions” approach would largely eliminate the clause from future cases, and Monaghan’s charge of destabilization seems more resonant.

Alternatively, originalism-plus-precedent could accept the transformation of the clause into an equal treatment provision. But then it’s hard to say how originalism should treat new equal protection claims – we can’t ask what the original meaning of “equal treatment” was (as applied to a new circumstance like, for example, same-sex marriage) if there was no original meaning of equal treatment. At that point does originalism abandon the entire field?

A third possibility specific to equal protection is to find an equal treatment requirement in some other provision, as Professor Rappaport suggests. But that would seem to render the immediate debate rather academic – and it would do nothing to solve other problems of the same nature (that is, areas where the entire foundation of the law is nonoriginalist).